Will The City Ban Performers from Parks Again?

In May, the Department of Parks and Recreation decided that entertainers would be allowed to perform in NYC's green spaces once again -- but court docs filed yesterday suggest that City admins might have changed their mind and might plan on kicking out performers.

This seeming reversal comes right at a time when these highly scrutinized policies toward performers will directly impact the Department's approach to visual artists -- specifically, whether the City can legally keep them out of the parks.

Remember that the May decision didn't just make New York's musicians, mimes, dancers, and other performers very happy.

Reps for these visual artists -- who are fighting a federal lawsuit against the City's vending rules -- thought the policy reversal would solidify their victory in court.

They claimed that Parks and Rec was unfairly and illegally prohibiting them from selling their wares, since entertainers were apparently allowed to perform for money again. They said that expressive matter vending rules had to apply to artists of all media or none at all. A judge even agreed to hear this specific argument before making a final decision in the case.

The Department countered, however, that it hadn't changed policies at all, with a Parks spokesman explicitly telling the Voice that it was more of an enforcement issue.

"The expressive matter rules have not changed," he said. "Generally, expressive matter vending rules do not apply to buskers and entertainers. They must continue to abide by all park rules. For example, they cannot block benches or paths, or play with amplified sound. On background, guitar playing does not fall under expressive matter vending rules but the set up of a table / sale of goods (a CD) would."

Sheryl Neufeld, City lawyer, dismissed the artists altogether, telling us: "The plaintiffs are just engaging in wishful thinking...There is nothing in today's order that supports their belief that the judge has given their contentions credence."‬

Now, however, it seems like the Department might reverse the reversal that it claims never took place.

A City attorney explained in a recently filed court memo:

"It remains the Parks Department's position that the Expressive Matter Vending Rules cover the activities of performers, musicians and buskers who entertain in exchange for a donation. However, in light of the New York State Supreme Court, Appellate Division, First Department's February 23,2012 decision re New York Skyline. Inc. v. City of New York, 94 A.D.3d 23 (App. Div. 1'st Dept. 20120), the Parks Department has temporarily stopped enforcing the Expressive Matter Vending Rules against people who entertain in exchange for a donation in the City's parks....If the City is successful on its appeal of that decision the Parks Department will resume its enforcement efforts. If the City is not successful, the Parks Department will consider other solutions to address its interests."

And:

"Finally, contrary to plaintiffs' allegations, recent press accounts which stated that the Expressive Matter Vending Rules are not presently being enforced against most so-called performers, musicians and buskers, are not indicative of a Parks Department determination that only artists who sell expressive matter in City parks should be "targeted" for enforcement...as a preliminary matter, it remains the Parks Department's position that the Expressive Matter Vending Rules cover the activity of performers, musicians and buskers who entertain in exchange for a donation. As set forth in 56 RCNY 1-05(bX1), the act of vending includes selling or offering for sale, hire, lease or let, or providing or offering to provide services or items in exchange for a donation. The Department has interpreted the word 'services' in this definition to include entertainment. Thus, the Department had determined that performers and musicians who provide entertainment in exchange for a donation were providing a service in exchange for a donation (albeit an expressive one) and, thus, were required to do so in a manner that complied with the Expressive Matter Vending Rules...

"However, in or around March 2012, I was advised by the Parks Department's General Counsel that, as a result of a decision rendered by the New York State Supreme Court, Appellate Division, First Department on February 23,2012, in a case called In re New York Skyline. Inc. v. City of New York, PEP Officers should temporarily stop enforcing the Expressive Matter Vending Rules against people who entertain in exchange for a donation in the City's park."

Broken down -- and we're sorry to have reproduced those dense excerpts in full, but thought we would be more accurate that way, so thanks for bearing with us -- the City seems to claim that the vending rules always applied to entertainers, but have just been put on temporary hiatus because another lawsuit ("Skyline") puts to question the regulations. This seems to directly contradict what Department told us -- that these guidelines never applied to entertainers in the first place.

Again, here's what we were told earlier: "The expressive matter rules have not changed. Generally, expressive matter vending rules do not apply to buskers and entertainers."

So, judging from these filings, it seems that the Department has two planned moves: if Skyline goes in its favor, then it will apply the "expressive matter" rule to entertainers again, meaning they won't be able to perform. If Skyline doesn't go in its favor, looks like Parks and Rec might try to figure out other ways to give them the boot, as it "will consider other solutions to address its interests."

We reached out to Parks and Rec to figure out what's going on, because we are getting conflicting accounts. We'll update when we hear back.

*Note: A previous version of this post referred to Skyline as "Highline."